[This is the text of a paper presented at the Media in Transition Conference at MIT on October 8, 1999.]

He who imitates must have a care that what he writes be similar, not identical . . . and that the similarity should not be of the kind that obtains between a portrait and a sitter, where the artist earns the more praise the greater the likeness, but rather of the kind that obtains between a son and his father . . . we (too) should take care that when one thing is like, many should be unlike, and that what is like should be hidden so as to be grasped only by the mind's silent enquiry, intelligible rather than describable. We should therefore make use of another man's inner quality and tone, but avoid his words. For the one kind of similarity is hidden and the other protrudes; the one creates poets, the other apes.

-- Petrarch, Le familiari, XXIII (14thc) [1]

Great works of art "are not the product of single and solitary births; they are the product of many years of thinking in common, of thinking by the body of the people, so that the experience of the mass is behind the single voice"

-- Virginia Woolf, A Room of One's Own

At the heart of copyright law lies the elusive ideal of originality -- and its corollary, plagiarism. Originality and plagiarism are not opposites but are closely related and both are linked to the idea of genius or imagination.

Both legally and culturally, originality and copyright law are very complex and raise some seminal issues which are largely ignored. There is no established discourse on the relationship between visual culture and copyright law, yet the expansion of a litigious mentality has begun to affect it, not least within the universities. Some fundamental questions should underpin any consideration of this subject:

What is originality in abstract terms? How do we recognise it in material terms? Is it measurable? And if so, by what means? Is it as important, either as an ideal or a reality, as we are led to believe? Is it a rational or even accessible goal? If originality -- however defined -- is important, to whom is it important? To the individual or to society? Or to both? And if the answer is both, is it possible to fulfil both interests or is there a clash and resulting imbalance? Finally, if originality does exist in a quantifiable way, who is entitled to claim it? and how does originality connect with ideas of ownership?

It is important to remember that copyright law does not protect ideas, themes or subject matter; but it does protect craftsmanship which is legally defined as 'effort and judgement'. The test for originality is simply: 'is it the work the result of independent effort and judgment?' And thus it excludes a consideration of artistic merit. Why? Because protection covers only form, not content, or ideas -- and this is one of the most contentious areas. As one 19th century judge remarked: "copyright...may be called the metaphysics of the law".

So it follows that using the same sources of ideas is permissible: two works can claim protection, even if identical, provided the effort behind the work is demonstrably independent. There is no statutory definition of infringement, just as there is no statutory definition of originality -- yet both must be proved if a claimant is to succeed.

Copying can be unintentional and yet still amount to infringement. Proof relies on circumstantial evidence which requires scrutinizing the manner and sequence in which the artist worked. Such evidence must show that the opportunity for copying existed and was taken; and that the copying was "substantial" and "material" -- that is, some essential quality of the work had been copied. The issue is whether there has been unfair advantage of the creative effort of a predecessor, and despite the effort to avoid subjective judgments, it is evident that a level of subjectivity infiltrates the tribunal.

But the legal world is indifferent to similarities or differences, or aesthetic merit -- it is only concerned with unlawful copying of style, and thus its criteria is much more loosely applied than that used within the art world. Law and art speak quite different languages.

The problem is that plagiarism permeates everyday life. It is not only accepted, it is encouraged and integral to creative life. We depend on it, for we learn through copying others and we use it to reinforce social bonds. Thus it is the basis of any art or design training. Yet paradoxically notions of originality are also entrenched in the creative process, as an ideal, no matter how unrealistic: "No man creates a new language for himself." [2] -- but the cult of individualism decrees that he must try.

Originality, if it exists at all, is not an absolute; its identification is subject to a scale of relative values and knowledge, it is conditional to time and place. It must be measured against its imitators:

The original must be defined relative to the usual, and the degree of originality must be specified statistically in terms of incidence of occurrence...the first criterion of an original response is that it should have a certain stated uncommonness in the particular group being studied."[3]

But Foucault has pronounced: "Origin is by no means the beginning." [4] The creative person is often stereotyped as the rebel outsider, an individual who leads rather than follows, capable of generating innovative ideas without the need for an external exchange with other sources of ideas. Such a view, explicitly Romantic, was dismissed by Karl Marx:

"as much an absurdity as...the development of language without individuals living together and talking to one another." [5]

Foucault has condemned modern creative thinking as a form of neurosis:

"...doomed, at every level, to its great preoccupation with recurrence, to its concern with recommencement, to that strange, stationery anxiety which forces upon it the duty of repeating repetition."[6]

This implying that our stronger impulse lies in repetition rather than in innovation. A quick and by no means comprehensive view of our language and the terminology relating to original and copy would seem to support Foucault's assertion, for there are many more words in the English language that relate to copying than those relating to origin or original; and the terms 'origin' and 'original' have more associations with nature than with culture, thus suggesting that an original occurs naturally but cannot be manufactured.

"He who imitates must have a care that what he writes be similar, not identical... and that the similarity should not be of the kind that obtains between a portrait and a sitter, where the artist earns more praise the greater the likeness, but rather of the kind that obtains between a son and his father...we (too) should take care that... what is like should be hidden as to be grasped only by the mind's silent enquiry, intelligible rather than describable. We should therefore make use of another man's inner quality and tone, but avoid his words. For the one kind of similarity is hidden and the other protrudes; the one creates poets, the other apes." [7]

In literature and in the visual arts, from the Renaissance onwards, a canon of models encouraged artists to engage in copying or imitatio primarily from other artists' works. It triggered a contentious debate which has continued until now. For some commentators, imitation combined assimilation of a precedent with interpretation. Through a series of considered acts, rather than a codified set of rules, the 'essence' of the subject was captured and re-rendered. This was the quality that the English 18th century painter, Sir Joshua Reynolds, recognised in the work of Raphael. In the eyes of Reynolds, Raphael affirmed the value of copying works of art as a route to originality.

Thus a distinction is drawn between copying and imitation -- for imitation requires a degree of generalisation which avoids the risk of direct quotation, permitting the imitator to move, in the words of Gombrich, from "pastiche to the free mastery of style". [8] Against such a standard, copying is defined as a form of mechanistic reproduction. Through this the master's style was assimilated, equipping the apprentice with the skills required of an assistant within the studio production. Individuality would be inappropriate -- even Leonardo used his master's drawings in his compositions, and declared "that the closer a painting was to "the thing imitated, the better." [9] Even Michelangelo was not beneath faking old drawings and carvings.

Copying was also practised as a means of reproduction: the Van Dyck equestrian portrait of Charles 1 (dated 1633; Her Majesty the Queen's collection) was copied at least 27 times by Van Dyck's assistants working to commission during the two decades after its completion, such was its success as a propagandist image. And plagiarism was also rife -- Ruben's portrait of Suzanna Fourment, portrayed in a large brimmed hat and holding a feather, spawned two centuries of imitators.

Art and design practice until the early 20th century was heavily dependent on formal copying. Both Cezanne and Matisse copied and openly acknowledged their debt to other artists. Perhaps because of this long-established tradition, plagiarism is hugely tolerated by artists and designers of today. Few will take legal action, perhaps because they acknowledge the common language of all creative expression -- or possibly because the perceived loss in financial terms cannot justify taking expensive and uncertain legal action.

But offsetting a level of predictability generated by copying was an increasing value attaching to the unpredictable. Unpredictability and eccentricity began to be viewed, during the later 19th century, as assets that signified genius and the result was not therefore an ordinary commodity, but one that was superior to mere commerce. Gradually the artist was re-positioned outside of mainstream culture and became associated with individuality and originality -- it was no longer sufficient to copy precedents; one was expected to invent them.

So the development of the cult of individualism elevates the value of originality and, at the same time, blurs its definition. Individualism has burdened successive generations of artists and designers with the increasingly elusive quest for originality. As more ideas and their expressions are generated, so originality becomes more rare and the use of precedent more insistent and inescapable. The increased premium placed on this by the world of commerce has not helped to ease it.

The myth of originality in art and design has considerable commercial value as a selling ploy, but the reality is that copying sustains the economy of commerce -- without it, less would be produced, manufactured and consumed, and fewer works of art would be exhibited. Yet another myth is created: the discriminating consumption of mass produced goods is another expression of individuality, on the part of the consumer.

The artist or designer judges originality on the basis of aesthetic merit -- that is, the particular quality of the idea expressed in a particular way, so that idea and aesthetic are generally approached as though they are inextricably linked, or symbiotically related.

The result is two systems of values, each defining originality on their own terms, thereby diverging to arrive at innately incompatible results. Thus the carved wooden form from which the Frisbee mould is manufactured is deemed by lawyers to be a work of art (sculpture), but would be regarded by sculptors as mere generic form, an inevitable consequence of its intended function rather than an expression of an artistic idea. In this case of Wham-O Manufacturing Co. v Lincoln Industries Ltd. (1985) RPC 127, where the plaintiff was the original Frisbee manufacturer, the court found that there was sufficient originality to attract copyright protection because a sculpture is classified as an artistic work irrespective of its aesthetic merits -- and, one could add, irrespective of its function. Thus the law strips art of its cultural function and evaluates simply in terms of its form. If it is hand carved -- as was the case with the Frisbee form -- it must be sculpture.

So what has this to do with media in transition? What happens when artists or designers are confronted with new technologies where there are no clear precedents to follow?

As I have already established, copying is integral to creativity. With no opportunity to plagiarise, the imagination appears to suffer. This, it must be emphasised, is not merely a technical-knowledge deficit, but an absence of aesthetic standards, for historical evidence reveals that standards are largely established by precedents. Copying, or plagiarism, is essential to the development of cultural richness: without it, an aridity of ideas results. However, the risk of unintentional plagiarism increases as a direct consequence of the unfamiliarity with new technological processes. The interaction between the mind of the user and the mind of the software designer is still largely unchartered territory. It is far from clear how much computer art or computer-aided design can be claimed to be an individual expression of an idea. Originality and imagination are the by-words of artistic integrity and yet the application of technological processes as a creative or reproductive tool may stifle both.

And although copyright law has some place in our culture, it should be resorted to with discretion, and treated with caution as potentially counter-productive and repressive. It is demonstrably difficult to arrive at a just result -- copyright law as it stands at present is fraught with semantic and evidential inconsistencies. Unfortunately, however, the application of new technologies facilitates and encourages plagiarism, at a conscious and sub-conscious level, particularly in those instances where, due to the unfamiliarity of the process, technology leads rather than the imagination.

Additionally, the creative and cognitive processes involved in designing within a non-technological culture and those same processes involved within the technological culture are very different. Thus the designer or artist who draws on technology to assist in the creative process may be unaware of these differences. Therefore both conceptually and pragmatically there may be a blurring of the boundaries between process and idea that fundamentally define the creative process of an individual work of design. Re-constructing the process may prove to be impossible, but legal principle insists upon it. Such blurring will result in a more elusive definition of originality where clarity should be sought instead.

Footnotes

[1] quoted in Gombrich, E.H. Norm and Form: Studies in the art of the Renaissance, Phaidon, 1971 (2nd edition), February 18, 2000.

[2] Justice Story, quoted in Plagiarism and Originality, Lindey, A., Greenwood Press, Connecticut, 1951.

[3] Barron, F. "Personality Studies" in Creativity, Vernon, P.E. (ed.), London, Penguin, 1974.

[4] Foucault, M., The Order of Things, p.330.

[5] Marx, Karl, quoted in Walker, J. Design History and the History of Design, Manchester U.P., 1986.

[6] Foucault, ibid.

[7] Petrarch, Le familiari, XXIII, quoted in Gombrich, E., Norm and Form: Studies in the Art of the Renaissance, Phaidon Press, 1966.

[8] Gombrich, ibid.

[9] Burke, Peter Tradition and Innovation in Renaissance Italy,Fontana, 1974, p. 154.